Fabian Franklin - What Prohibition Has Done to America
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Fabian Franklin >> What Prohibition Has Done to America
What Prohibition Has Done to America
by Fabian Franklin
Copyright 1922, Harcourt, Brace & Co., New York.
Table of Contents
Chapter I - Perverting the Constitution
Chapter II - Creating a Nation of Lawbreakers
Chapter III - Destroying Our Federal System
Chapter IV - How the Amendment Was Put Through
Chapter V - The Law Makers and the Law
Chapter VI - The Law Enforcers and the Law
Chapter VII - Nature of the Prohibitionist Tyranny
Chapter VIII - One-Half of One Percent
Chapter IX - Prohibition and Liberty
Chapter X - Prohibition and Socialism
Chapter XI - Is There Any Way Out?
CHAPTER I
PERVERTING THE CONSTITUTION
THE object of a Constitution like that of the United States is to
establish certain fundamentals of government in such a way that they
cannot be altered or destroyed by the mere will of a majority of the
people, or by the ordinary processes of legislation. The framers of
the Constitution saw the necessity of making a distinction between
these fundamentals and the ordinary subjects of law-making, and
accordingly they, and the people who gave their approval to the
Constitution, deliberately arrogated to themselves the power to
shackle future majorities in regard to the essentials of the system of
government which they brought into being. They did this with a clear
consciousness of the object which they had in view--the stability of
the new government and the protection of certain fundamental rights
and liberties. But they did not for a moment entertain the idea of
imposing upon future generations, through the extraordinary sanctions
of the Constitution, their views upon any special subject of ordinary
legislation. Such a proceeding would have seemed to them far more
monstrous, and far less excusable, than that tyranny of George III and
his Parliament which had given rise to the American Revolution.
Until the adoption of the Eighteenth Amendment, the Constitution of
the United States retained the character which properly belongs to the
organic law of a great Federal Republic. The matters with which it
dealt were of three kinds, and three only--the division of powers as
between the Federal and the State governments, the structure of the
Federal government itself, and the safeguarding of the fundamental
rights of American citizens. These were things that it was felt
essential to remove from the vicissitudes attendant upon the temper of
the majority at given time. There was not to be any doubt from year to
year as to the limits of Federal power on the one hand and State power
on the other; nor as to the structure of the Federal government and
the respective functions of the legislative, executive, and judicial
departments of that government; nor as to the preservation of certain
fundamental rights pertaining to life, liberty and property.
That these things, once laid down in the organic law of the country,
should not be subject to disturbance except by the extraordinary and
difficult process of amendment prescribed by the Constitution was the
dictate of the highest political wisdom; and it was only because of
the manifest wisdom upon which it was based that the Constitution, in
spite of many trials and drawbacks, commanded, during nearly a century
and a half of momentous history, the respect and devotion of
generation after generation of American citizens. Although the
Constitution of the United States has been pronounced by an
illustrious British statesman the most wonderful work ever struck off
at a given time by the brain and purpose of man, it would be not only
folly, but superstition, to regard it as perfect. It has been amended
in the past, and will need to be amended in the future. The Income Tax
Amendment enlarged the power of the Federal government in the field of
taxation, and to that extent encroached upon a domain theretofore
reserved to the States. The amendment which referred the election of
Senators to popular vote, instead of having them chosen by the State
Legislatures, altered a feature of the mechanism originally laid down
for the setting up of the Federal government. The amendments that were
adopted as a consequence of the Civil War were designed to put an end
to slavery and to guarantee to the negroes the fundamental rights of
freemen. With the exception of the amendments adopted almost
immediately after the framing of the Constitution itself, and
therefore usually regarded as almost forming part of the original
instrument, the amendments just referred to are the only ones that had
been adopted prior to the Eighteenth; and it happens that these
amendments--the Sixteenth, the Seventeenth, and the group comprising
the Thirteenth, Fourteenth and Fifteenth--deal respectively with the
three kinds of things with which the Constitution was originally, and
is legitimately, concerned: the division of powers between the Federal
and the State governments, the structure of the Federal government
itself, the safeguarding of the fundamental rights of American
citizens.
One of the gravest indictments against the Eighteenth Amendment is
that it has struck a deadly blow at the heart of our Federal system,
the principle of local self-government. How sound that indictment is,
how profound the injury which National Prohibition inflicted upon the
States as self-governing entities, will be considered in a subsequent
chapter. At this point we are concerned with an objection even more
vital and more conclusive.
Upon the question of centralization or decentralization, of Federal
power or State autonomy, there is room for rational difference of
opinion. But upon the question whether a regulation prescribing the
personal habits of individuals forms a proper part of the Constitution
of a great nation there is no room whatever for rational difference of
opinion. Whether Prohibition is right or wrong, wise or unwise, all
sides are agreed that it is a denial of personal liberty.
Prohibitionists maintain that the denial is justified, like other
restraints upon personal liberty to which we all assent;
anti-prohibitionists maintain that this denial of personal liberty is
of a vitally different nature from those to which we all assent. That
it is a denial of personal liberty is undisputed; and the point with
which we are at this moment concerned is that to entrench a denial of
liberty behind the mighty ramparts of our Constitution is to do
precisely the opposite of what our Constitution--or any Constitution
like ours--is designed to do. The Constitution withdraws certain
things from the control of the majority for the time being--withdraws
them from the province of ordinary legislation--for the purpose of
safeguarding liberty, the Eighteenth Amendment seizes upon the
mechanism designed for this purpose, and perverts it to the
diametrically opposite end, that of safeguarding the denial of
liberty.
All history teaches that liberty is in danger from the tyranny of
majorities as well as from that of oligarchies and monarchies;
accordingly the Constitution says: No mere majority, no ordinary
legislative procedure, shall be competent to deprive the people of the
liberty that is hereby guaranteed to them. But the Eighteenth
Amendment says: No mere majority, no mere legislative procedure, shall
be competent to restore to the people the liberty that is hereby taken
away from them. Thus, quite apart from all questions as to the merits
of Prohibition in itself, the Eighteenth Amendment is a Constitutional
monstrosity. That this has not been more generally and more keenly
recognized is little to the credit of the American people, and still
less to the credit of the American press and of those who should be
the leaders of public opinion. One circumstance may, however, be cited
which tends to extenuate in some degree this glaring failure of
political sense and judgment. There have long been Prohibition
enactments in many of our State Constitutions, and this has made
familiar and commonplace the idea of Prohibition as part of a
Constitution. But our State Constitutions are not Constitutions in
anything like the same sense as that which attaches to the
Constitution of the United States. Most of our State Constitutions can
be altered with little more difficulty than ordinary laws; the process
merely takes a little more time, and offers no serious obstacle to any
object earnestly desired by a substantial majority of the people of
the State.
Accordingly our State Constitutions are full of a multitude of details
which really belong in the ordinary domain of statute law; and nobody
looks upon them as embodying that fundamental and organic law upon
whose integrity and authority depends the life and safety of our
institutions. The Constitution of the United States, on the other
hand, is a true Constitution--concerned only with fundamentals, and
guarded against change in a manner suited to the preservation of
fundamentals. To put into it a regulation of personal habits, to
buttress such a regulation by its safeguards, is an atrocity for which
no characterization can be too severe. And it is something more than
an atrocity; the Eighteenth Amendment is not only a perversion but
also a degradation of the Constitution. In what precedes, the emphasis
has been placed on the perversion of what was designed as a safeguard
of liberty into a safeguard of the denial of liberty. But even if no
issue of liberty entered into the case, an amendment that embodied a
mere police regulation would be a degradation of the Constitution. In
the earlier days of our history --indeed up to a comparatively recent
time--if any one had suggested such a thing as a Prohibition
amendment to the Federal Constitution, he would have been met not with
indignation but with ridicule. It would not have been the monstrosity,
but the absurdity, of such a proposal, that would have been first in
the thought of almost any intelligent American to whom it might have
been presented. He would have felt that such a feature was as utterly
out of place in the Constitution of the United States as would be a
statute regulating the height of houses or the length of women's
skirts. It might be as meritorious as you please in itself, but it
didn't belong in the Constitution. If the Constitution is to command
the kind of respect which shall make it the steadfast bulwark of our
institutions, the guaranty of our union and our welfare, it must
preserve the character that befits such an instrument. The Eighteenth
Amendment, if it were not odious as a perversion of the power of the
Constitution, would be contemptible as an offense against its dignity.
CHAPTER II
CREATING A NATION OF LAW-BREAKERS
IN his baccalaureate address as President of Yale University, in June,
1922, Dr. Angell felt called upon to say that in this country "the
violation of law has never been so general nor so widely condoned as
at present," and to add these impressive words of appeal to the young
graduates:
This is a fact which strikes at the very heart of our system of
government, and the young man entering upon his active career must
decide whether he too will condone and even abet such disregard of
law, or whether he will set his face firmly against such a course.
It is safe to say that there has never been a time in the history of
our country when the President of a great university could have found
it necessary to address the young Americans before him in any such
language. There has never been a time when deliberate disregard of law
was habitual among the classes which represent culture, achievement,
and wealth--the classes among whom respect for law is usually
regarded as constant and instinctive. That such disregard now prevails
is an assertion for which President Angell did not find it necessary
to point to any evidence. It is universally admitted. Friends of
Prohibition and enemies of Prohibition, at odds on everything else,
are in entire agreement upon this. It is high time that thinking
people went beyond the mere recognition of this fact and entered into
a serious examination of the cause to which it is to be ascribed.
Perhaps I should say the causes, for of course more causes than one
enter into the matter. But I say the cause, for the reason that there
is one cause which transcends all others, both in underlying
importance and in the permanence of its nature. That cause does not
reside in any special extravagances that there may be in the Volstead
act. The cardinal grievance against which the unprecedented contempt
for law among high-minded and law-abiding people is directed is not
the Volstead act but the Eighteenth Amendment. The enactment of that
Amendment was a monstrosity so gross that no thinking American thirty
years ago would have regarded it as a possibility. It is not only a
crime against the Constitution of the United States, and not only a
crime against the whole spirit of our Federal system, but a crime
against the first principles of rational government. The object of the
Constitution of the United States is to imbed in the organic law of
the country certain principles, and certain arrangements for the
distribution of power, which shall be binding in a peculiar way upon
generation after generation of the American people. Once so imbedded,
it may prove to be impossible by anything short of a revolution to get
them out, even though a very great majority of the people should
desire to do so.
If laws regulating the ordinary personal conduct of individuals are to
be entrenched in this way, one of the first conditions of respect for
law necessarily falls to the ground. That practical maxim which is
always appealed to, and rightly appealed to, in behalf of an unpopular
law--the maxim that if the law is bad the way to get it repealed is to
obey it and enforce it--loses its validity. If a majority cannot
repeal the law--if it is perfectly conceivable, and even probable,
that generation after generation may pass without the will of the
majority having a chance to be put into effect--then it is idle to
expect intelligent freemen to bow down in meek submission to its
prescriptions. Apart from the question of distribution of governmental
powers, it was until recently a matter of course to say that the
purpose of the Constitution was to protect the rights of minorities.
That it might ever be perverted to exactly the opposite purpose--to
the purpose of fastening not only upon minorities but even upon
majorities for an unlimited future the will of the majority for the
time being--certainly never crossed the mind of any of the great men
who framed the Constitution of the United States. Yet this is
precisely what the Prohibition mania has done. The safeguards designed
to protect freedom against thoughtless or wanton invasion have been
seized upon as a means of protecting a denial of freedom against any
practical possibility of repeal. Upon a matter concerning the ordinary
practices of daily life, we and our children and our children's
children are deprived of the possibility of taking such action as we
think fit unless we can obtain the assent of twothirds of both
branches of Congress and the Legislatures of three-fourths of the
States. To live under such a dispensation in such a matter is to live
without the first essentials of a government of freemen. I admit that
all this is not clearly in the minds of most of the people who break
the law, or who condone or abet the breaking of the law. Nevertheless
it is virtually in their minds. For, whenever an attempt is made to
bring about a substantial change in the Prohibition law, the objection
is immediately made that such a change would necessarily amount to a
nullification of the Eighteenth Amendment. And so it would. People
therefore feel in their hearts that they are confronted practically
with no other choice but that of either supinely submitting to the
full rigor of Prohibition, of trying to procure a law which nullifies
the Constitution, or of expressing their resentment against an outrage
on the first principles of the Constitution by contemptuous disregard
of the law. It is a choice of evils; and it is not surprising that
many good citizens regard the last of the three choices as the best.
How far this contempt and this disregard has gone is but very
imperfectly indicated by the things which were doubtless in President
Angell's mind, and which are in the minds of most persons who publicly
express their regret over the prevalence of law-breaking. What they
are thinking about, what the Anti-Saloon League talks about, what the
Prohibition enforcement officers expend their energy upon, is the sale
of alcoholic drinks in public places and by bootleggers. But where the
bootlegger and the restaurant-keeper counts his thousands, home brew
counts its tens of thousands. To this subject there is a remarkable
absence of attention on the part of the Anti-Saloon League and of the
Prohibition enforcement service. They know that there are not hundreds
of thousands but millions of people breaking the law by making their
own liquors, but they dare not speak of it. They dare not go even so
far as to make it universally known that the making of home brew is a
violation of the law. To this day a very considerable number of people
who indulge in the practice are unaware that it is a violation of the
law. And the reason for this careful and persistent silence is only
too plain. To make conspicuous before the whole American people the
fact that the law is being steadily and complacently violated in
millions of decent American homes would bring about a realization of
the demoralizing effect of Prohibition which its sponsors, fanatical
as they are, very wisely shrink from facing.
How long this demoralization may last I shall not venture to predict.
But it will not be overcome in a day; and it will not be overcome at
all by means of exhortations. It is possible that enforcement will
gradually become more and more efficient, and that the spirit of
resistance may thus gradually be worn out. On the other hand it is
also possible that means of evading the law may become more and more
perfected by invention and otherwise, and that the melancholy and
humiliating spectacle which we are now witnessing may be of very long
duration. But in any case it has already lasted long enough to do
incalculable and almost ineradicable harm. And for all this it is
utterly idle to place the blame on those qualities of human nature
which have led to the violation of the law. Of those qualities some
are reprehensible and some are not only blameless but commendable. The
great guilt is not that of the law-breakers but that of the lawmakers.
It is childish to imagine that every law, no matter what its nature,
can command respect. Nothing would be easier than to imagine laws
which a very considerable number of perfectly wellmeaning people would
be glad to have enacted, but which if enacted it would be not only the
right, but the duty, of sound citizens to ignore. I do not say that
the Eighteenth Amendment falls into this category. But it comes
perilously near to doing so, and thousands of the best American
citizens think that it actually does do so. It has degraded the
Constitution of the United States. It has created a division among the
people of the United States comparable only to that which was made by
the awful issue of slavery and secession. That issue was a result of
deepseated historical causes in the face of which the wisdom and
patriotism of three generations of Americans found itself powerless.
This new cleavage has been caused by an act of legislative folly
unmatched in the history of free institutions. My hope--a distant and
yet a sincere hope--is that the American people may, in spite of all
difficulties, be awakened to a realization of that folly and restore
the Constitution to its traditional dignity by a repeal, sooner or
later, of the monstrous Amendment by which it has been defaced.
CHAPTER III
DESTROYING OUR FEDERAL SYSTEM
THUS far I have been dealing with the wrong which the Prohibition
Amendment commits against the vital principle of any national
Constitution, the principle which alone justifies the idea of a
Constitution--a body of organic law removed from the operation of the
ordinary processes of popular rule and representative government. But
reference was made at the outset to a wrong of a more special, yet
equally profound, character. The distinctive feature of our system of
government is that it combines a high degree of power and independence
in the several States with a high degree of power and authority in the
national government. Time was when the dispute naturally arising in
such a Federal Union, concerning the line of division between these
two kinds of power, turned on an abstract or legalistic question of
State sovereignty. That abstract question was decided, once for all,
by the arbitrament of arms in our great Civil War. But the decision,
while it strengthened the foundations of the Federal Union, left
unimpaired the individuality, the vitality, the self-dependence of the
States in all the ordinary affairs of life. It continued to be true,
after the war as before, that each State had its own local pride,
developed its own special institutions, regulated the conduct of life
within its boundaries according to its own views of what was conducive
to the order, the well-being, the contentment, the progress, of its
own people. It has been the belief of practically all intelligent
observers of our national life that this individuality and
self-dependence of the States has been a cardinal element in the
promotion of our national welfare and in the preservation of our
national character. In a country of such vast extent and natural
variety, a country developing with unparalleled rapidity and
confronted with constantly changing conditions, who can say how great
would have been the loss to local initiative and civic spirit, how
grave the impairment of national concord and good will, if all the
serious concerns of the American people had been settled for them by a
central government at Washington ? In that admirable little book,
"Politics for Young Americans," Charles Nordhoff fifty years ago
expounded in simple language the principles underlying our system of
government. Coming to the subject of "Decentralization," he said:
Experience has shown that this device [decentralization] is of
extreme importance, for two reasons: First, it is a powerful and
the best means of training a people to efficient political action
and the art of self-government; and, second, it presents constant
and important barriers to the encroachment of rulers upon the
rights and liberties of the nation; every subdivision forming a
stronghold of resistance by the people against unjust or wicked
rulers. Take notice that any system of government is excellent in
the precise degree in which it naturally trains the people in
political independence, and habituates them to take an active part
in governing themselves. Whatever plan of government does this is
good--no matter what it may be called; and that which avoids this
is necessarily bad.
What Mr. Nordhoff thus set forth has been universally acknowledged as
the cardinal merit of local self-government; and in addition to this
cardinal merit it has been recognized by all competent students of our
history that our system of self-governing States has proved itself of
inestimable benefit in another way. It has rendered possible the
trying of important experiments in social and governmental policy;
experiments which it would have been sometimes dangerous, and still
more frequently politically impossible, to inaugurate on a national
scale. When these experiments have proved successful, State after
State has followed the example set by one or a few among their number;
when they have been disappointing in their results, the rest of the
Union has profited by the warning. But, highly important as is this
aspect of State independence, the most essential benefits of it are
the training in self-government which is emphasized in the above
quotation from Mr. Nordhoff, and the adaptation of laws to the
particular needs and the particular character of the people of the
various States. That modern conditions have inevitably led to a vast
enlargement of the powers of the central government, no thinking
person can deny. It would be folly to attempt to stick to the exact
division of State functions as against national which was natural when
the Union was first formed. The railroad, the telegraph, and the
telephone, the immense development of industrial, commercial, and
financial organization, the growth of interwoven interests of a
thousand kinds, have brought the people of California and New York, of
Michigan and Texas, into closer relations than were common between
those of Massachusetts and Virginia in the days of Washington and John
Adams. In so far as the process of centralization has been dictated by
the clear necessities of the times, it would be idle to obstruct it or
to cry out against it. But, so far from this being an argument against
the preservation of the essentials of local self-government, it is the
strongest possible argument in favor of that preservation. With the
progress of science, invention, and business organization, the power
and prestige of the central government are bound to grow, the power
and prestige of the State governments are bound to decline, under the
pressure of economic necessity and social convenience; all the more,
then, does it behoove us to sustain those essentials of State
authority which are not comprised within the domain of those
overmastering economic forces. If we do not hold the line where the
line can be held, we give up the cause altogether; and it will be only
a question of time when we shall have drifted into complete subjection
to a centralized government, and State boundaries will have no more
serious significance than county boundaries have now. But if there is
one thing in the wide world the control of which naturally and
preeminently belongs to the individual State and not to the central
government at Washington, that thing is the personal conduct and
habits of the people of the State. If it is right and proper that the
people of New York or Illinois or Maryland shall be subjected to a
national law which declares what they may or may not eat or drink--a
law which they cannot themselves alter, no matter how strongly they
may desire it--then there is no act of centralization whatsoever which
can be justly objected to as an act of centralization. The Prohibition
Amendment is not merely an impairment of the principle of
self-government of the States; it constitutes an absolute abandonment
of that principle. This does not mean, of course, an immediate
abandonment of the practice of State self-government; established
institutions have a tenacious life, and moreover there are a thousand
practical advantages in State selfgovernment which nobody will think
of giving up. But the principle, I repeat, is abandoned altogether if
we accept the Eighteenth Amendment as right and proper; and if anybody
imagines that the abandonment of the principle is of no practical
consequence, he is woefully deluded. So long as the principle is held
in esteem, it is always possible to make a stout fight against any
particular encroachment upon State authority; any proposed
encroachment must prove its claim to acceptance not only as a
practical desideratum but as not too flagrant an invasion of State
prerogatives. But with the Eighteenth Amendment accepted as a proper
part of our system, it will be impossible to object to any invasion as
more flagrant than that to which the nation has already given its
approval. A striking illustration of this has, curiously enough, been
furnished in the brief time that has passed since the adoption or the
eighteenth Amendment. Southern Senators and Representatives and
Legislaturemen who, for getting all about their cherished doctrine of
State rights, had fallen over themselves in their eagerness to fasten
the Eighteenth Amendment upon the country, suddenly discovered that
they were deeply devoted to that doctrine when the Nineteenth
Amendment came up for consideration. But nobody would listen to them.
They professed--and doubtless some of them sincerely professed--to
find an essential difference between putting Woman Suffrage into the
Constitution and putting Prohibition into the Constitution. The
determination of the right of suffrage was, they said, the most
fundamental attribute of a sovereign State; national Prohibition did
not strike at the heart of State sovereignty as did national
regulation of the suffrage. But the abstract question of sovereignty
has had little interest for the nation since the Civil War; and if we
waive that abstract question, the Prohibition Amendment was an
infinitely more vital thrust at the principle of State selfgovernment.
The Woman Suffrage Amendment was the assertion of a fundamental
principle of government, and if it was an abridgment of sovereignty it
was an abridgment of the same character as those embodied in the
Constitution from the beginning, the Prohibition Amendment brought the
Federal Government into control of precisely those intimate concerns
of daily life which, above all else, had theretofore been left
untouched by the central power, and subject to the independent
jurisdiction of each individual State. The South had eagerly swallowed
a camel, and when it asked the country to strain at a gnat it found
nobody to listen. Our public men, and our leaders of opinion,
frequently and earnestly express their concern over the decline of
importance in our State governments, the lessened vigor of the State
spirit. The sentiment is not peculiar to any party or to any section;
it is expressed with equal emphasis and with equal frequency by
leading Republicans and leading Democrats, by Northerners and
Southerners. All feel alike that with the decay of State spirit a
virtue will go out of our national spirit--that a centralized America
will be a devitalized America. But when they discuss the subject, they
are in the habit of referring chiefly to defects in administration; to
neglect of duty by the average citizen or perhaps by those in high
places in business or the professions; to want of intelligence in the
Legislature, etc. And for all this there is much reason; yet all this
we have had always with us, and it is not always that we have had with
us this sense of the decline of State spirit. For that decline the
chief cause is the gradual, yet steady and rapid, extension of
national power and lowering of the comparative importance of the
functions of the State. However, the functions that still remain to
the State--and its subdivisions, the municipalities and counties --are
still of enormous importance; and, with the growth of public-welfare
activities which are ramifying in so many directions, that importance
may be far greater in the future. But what is to become of it if we
are ready to surrender to the central government the control of our
most intimate concerns? And what concern can be so intimate as that of
the conduct of the individual citizen in the pursuit of his daily
life? How can the idea of the State as an object of pride or as a
source of authority flourish when the most elementary of its functions
is supinely abandoned to the custody of a higher and a stronger power?
The Prohibition Amendment has done more to sap the vitality of our
State system than could be done by a hundred years of misrule at
Albany or Harrisburg or Springfield. The effects of that misrule are
more directly apparent, but they leave the State spirit untouched in
its vital parts. The Prohibition Amendment strikes at the root of that
spirit, and its evil precedent, if unreversed, will steadily cut off
the source from which that spirit derives its life.